Whether the general rules which control the effect of war upon the performance of contracts can be modified by specific provisions in a contract with reference to the outbreak of war, is a question which is in part to be determined by the general principles of public policy underlying the rule that war discharges or suspends certain contracts, and in part by the general principles of construction. If the contract is one the performance of which is forbidden on the ground that the contract if performed will aid the enemy,1 or will involve trading with the enemy, the parties can not prevent the effect of such rules of law by any provisioa in the contract,2 although even in cases of this sort the court is likely to base its decision on the construction of the contract, if the contract can be construed as not providing for illegal performance in express terms,3 rather than on questions of public policy. In so doing, however, the courts are merely applying the general rule of construction that a contract will be construed so as to render its performance legal if such construction can fairly be placed upon the words which the parties have used when read in connection with the surrounding circumstances.4 A contract by which a British company charters a ship to a Holland company, the stock in which is held by Germans, is discharged by the outbreak of war between England and Germany, although such contract provides that "in the event of war between the nation to whose flag the chartered steamer belongs, and any European power * * * charterers and/ or owners shall have the option of suspending this charter during the time in which hostilities are in progress."5 A contract by which an English company had agreed to sell a large amount of ore to a German company, which would be useful to Germany in carrying on the war, is dissolved and not merely suspended by the outbreak of war between England and Germany, although such contract contains a provision that if owing to war the seller should be prevented from shipping and delivering the ore, the obligation to ship and deliver should be suspended while such impediment should continue, and for a reasonable time thereafter.6 A contract by which a British corporation agrees to sell its output of iron to a German corporation, who is to act as its sales agent, is discharged by the outbreak of the war,7 though such contract contains a provision that during mobilization of German military forces, the defendant should not be bound to take deliveries of such iron.8 If an English company has agreed to sell a large quantity of ore to a German company, and such ore will assist Germany in carrying on the war, such contract is discharged by the outbreak of war between England and Germany, although it contains a provision that such contract should be suspended during the continuance of disabilities, such as acts of God, force majeure, or any cause beyond the control of either seller or buyer.9 Under a contract for the sale of a product, the bulk of which is in fact imported from Germany, which contains a provision for suspending such contract in case of a contingency beyond the control of the parties, such as war, which causes a shortage in labor, fuel, raw material, or manufactured product, it has been held that such contract is suspended on the outbreak of war between England and Germany, if there is a general shortage in the article which makes it impossible for the seller to fill all his orders, although he had sufficient supply to have filled any one order to the exclusion of others.10 If a contract in legal effect provides for the sale of a given product to be manufactured by the seller from material which can be obtained in commercial quantities only by importing it from Europe, and if such contract contains a provision to the effect that "obstructions to navigation * * * insurrections or other uncontrollable causes * * * shall be good and sufficient reasons to make that contract inoperative during * * * the continuance of the difficulties," such contract is suspended by the fact that the importation of such material has practically ceased owing to the attacks of submarines. It is not necessary that the sellers should manufacture such product out of a different and more expensive material, nor is it necessary that they should buy such product from other manufacturers.11 A contract for the sale of prussiate of soda, which contains a provision to the effect that sellers were not liable for delays due to causes beyond their control, including war, was held not to be discharged by the outbreak of war between Great Britain and Germany, although as a result of such war goods could not be exported from Germany, and such article was produced only in Germany, at least if the seller had enough of such article on hand at the time that such contract was made to perform such contract.12 It was said that, since the contract was entered into after war had broken out between Great Britain and Germany, the provision with reference to the war could apply only to a war in which the United States might become a party.13
8 Crawford v. Willing, 4 U. S. (4 Dall.) 286, 1 L. ed. 836.
9 Crawford v. Willing, 4 U. S. (4 Dall.) 286, 1 L. ed. 836.
1 See Sec. 2733.
2 Clapham Steamship Co. v. Naam-looze Vennootschap Handels-en Transport-Maatschappij Vulcaan , 2 K. B. 630; Bieber v. Rio Tinto Co. , A. C. 260; Naylor v. Krain-ische Industrie Gesellschaft , 2 K. B. 486 [affirming (1018), 1 K. B. 331; and citing, Bieber v. Rio Tinto Co. (1918), A. C. 260]; Distington Hematite Iron Co. v. Possehl , 1 K. B. 811; Zinc Corporation v. Hirsch , 1 K.B. 651, L. R. A. 1917C, 660.
4 See Sec. 2061 et seq.
5 Clapham Steamship Co. v. Naam-looze Vennootschap Handels-en Trans-port-Maatschappij Vulcaan , 2 K. B. 639.
6 Bieber v. Rio Tinto Co. , A. C. 260.
See to the same effect, Naylor v. Krainische Industrie Gesellschaft , 2 K. B. 486 [affirming (1918), 1 K. B. 331; and citing, Bieber v. Rio Tinto Co. (1918), A. C. 260].
7 Distington Hematite Iron Co. v. Poasehl , 1 K. B. 811.
8Distington Hematite Iron Co. v. Possehl , 1 K. B. 811.
9 Zinc Corporation v. Hirsch , 1 K. B. 541, L. R. A. 1917C, 650.
10 Tennanta v. Wilson , A. C. 495 [reversing, Wilson v. Tennants (1917), 1 K. B. 208].
11 Davison Chemical Co. v. Baugh Chemical Co., 133 Md. 203, 3 A. L. R. 1, 104 Atl. 404.
12 Standard Silk Dyeing Co. v. Roess-ler & Hasslacher Chemical Co., 244 Fed. 250.
If the contract is one which would not be discharged or suspended by the operation of the law on the outbreak of war, full effect is given to an express provision for suspending it or terminating it in case of war.14 Under a provision in a contract of employment to be performed in the United States, and terminating such contract "in case of war," 15 or in case of "public calamity or casualty,"16 such contract may be terminated because of the outbreak of the war in Europe.
If a contract for the construction of a vessel in France provided that if France should become engaged in European war, "this contract shall become void," the word "void" is to be construed literally and not as meaning "voidable at the option of the purchaser," and if the seller takes advantage of such provision and refuses to perform because of causes beyond his own control, the buyer can not maintain an action on such contract.17